It was her cell phone. She was on her property. And they were handcuffing her husband on the ground.

Yet when Heather Donald used her cell phone to videotape the arrest of her husband Thomas, the police took the cell phone from her and later commanded her to delete the footage. In so doing, they violated her First Amendment right to record and report about their conduct.

According to the Crawford County Sheriff’s Office, deputies responded to a call from Heather about a possible trespassing. When they arrived at the Donalds’ home, Thomas pointed what appeared to be a loaded gun at them. Heather says that her husband held up the “open shotgun” with his left hand while holding the shell in his right hand to indicate the weapon was not loaded and to assure the officers that he was not a threat. All agree that a deputy, Shawn Shoor, pointed his pistol at Thomas and told him to lie on the ground. Thomas complied, and Shoor handcuffed him.

Heather did not interfere with Shoor in any way. Because she was concerned that her husband was being mistreated, however, she began to film the events with her cell phone. In the video, Shoor tells Heather that she “can stop” filming. When she continues to film, a second officer informs her that the police need to take the cell phone as “evidence.” The second officer then confiscates the phone.

Heather claims that the deputies later commanded her to delete the video before they returned the phone and that she did so, but a recovery program saved her footage.

If Heather was indeed commanded to delete her footage, it was an egregious abuse of police authority and a violation of Heather’s constitutional rights. The First Amendment guarantees the right to record and report upon matters of public interest. It prevents the government from limiting the stock of information available to the public, as well as covering up overly aggressive police tactics.

As the U.S. Supreme Court stated in Near v. Minnesota, “In determining the extent of the constitutional protection [of the press], it has generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints.”

Accordingly, federal courts that have considered the issue have held that citizens have a constitutional right to film officers who are performing their duties in public places, subject to reasonable time, place, and manner restrictions. Given that Heather was on her own property, no such restrictions would apply to her filming of the arrest.

While, thankfully, Heather’s footage was preserved, we should insist that government officials comply with our First Amendment right to make recordings like this one. Today, cell phones are an increasingly important means of recording and publishing information. Allowing officials to force citizens to delete video footage on their cell phones would encourage those officials to crack down on a tremendously effective means of exposing violations of individual liberties. We can’t let ourselves be cut off like this.

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